John Fund
Wall Street Journal Editorial
October 29, 2007

It wasn't that hard for Indiana's Rep. Mike Pence to build media and congressional support for his Free Flow of Information Act, which would protect the confidentiality of contacts between reporters and sources. It passed the House this month by an overwhelming vote of 398-21. His next battle will be a lot harder--to permanently ban the Fairness Doctrine, the regulation many liberals are now actively trying to revive in an effort to silence their critics.

Until the FCC scrapped the Fairness Doctrine in 1987, it required broadcasters to provide equal time to all sides of "controversial" issues. In practice, this led to what Bill Monroe, a former host of NBC's "Meet the Press," called "timid, don't-rock-the-boat coverage." On radio, Newsweek's Howard Fineman notes, it "effectively kept partisan shows off the airwaves," so that in 1980 there were a mere 75 talk radio stations. Today there are 1,800.

But the Fairness Doctrine has always had fans in the corridors of power because it gave incumbents a way of muzzling their opponents. The Kennedy administration used it as a political weapon. Bill Ruder, Kennedy's assistant secretary of commerce, explained: "Our strategy was to use the Fairness Doctrine to challenge and harass right-wing broadcasters and hope that the challenges would be so costly to them that they would be inhibited and decide it was too expensive to continue." The Nixon administration similarly used the doctrine to torment left-wing broadcasters.

Democrats who have become "Fairness" mongers insist they simply want to restore civility and balance to the airwaves. Al Gore, in a typically overheated speech last year bemoaned "the destruction of [the] marketplace of ideas" which he blamed in part on the repeal of the Fairness Doctrine, after which "Rush Limbaugh and other hate-mongers began to fill the airwaves."

Sen. Dianne Feinstein rails against "one-sided programming" that has pushed the American people into "extreme views without a lot of information." She thinks Americans deserve to know "both sides of the story." Isn't it enough that National Public Radio, subsidized by the government, serves as a vehicle for liberal voices in just about every community in the country?

True, commercial radio is dominated by conservatives, but perhaps that's because liberal arguments in their full-throated glory just haven't sold as well. Air America, the liberal talk radio network that debuted in 2004, is in perpetual financial trouble. Then there's the GreenStone talk radio network started last year by feminists Jane Fonda and Gloria Steinem. It offered cutting-edge liberal thinking pitched to a female audience--and flopped completely.

Rep. Pence says he knows all about the power of talk radio because he used to host a statewide show in Indiana, where he describes himself as "the decaf Rush Limbaugh." He believes the Fairness Doctrine would "amount to government control over political views expressed on the public airwaves." In June his first effort to impose a one-year moratorium on any revival of the Fairness Doctrine by the FCC passed, 309-115, with nearly half of House Democrats voting in favor.

But a one-year moratorium was an easy vote, because there is no reason to expect the Fairness Doctrine to make a comeback before 2009, when a new president--perhaps a Democrat--appoints a majority of FCC commissioners.

That's why Mr. Pence is proposing the Broadcaster Freedom Act, a bill that would permanently bury the Fairness Doctrine. Because House Democratic leaders are unlikely to allow it to come to the floor for a vote, Mr. Pence has launched a "discharge petition," a device to bypass House committees and move the bill directly to the floor. He needs 218 members--a House majority--to sign the petition. He has collected 185 signatures, but all from Republicans. Democrats are being told by their leadership that signing such a petition would undermine their control of the House.

Mr. Pence, says that "freedom should not be a partisan issue" and that he is optimistic that he can collect the signature of every Republican and then pluck off some 20 of the Democrats who voted for his one-year moratorium last summer (he'd need at least 18).

The stakes are high. "Lovers of liberty must expose calls to restore the Fairness Doctrine for the fraudulent power-grab that they plainly are," writes Brian Anderson, editor of the Manhattan Institute's City Journal.

That's because the attempts to control the airwaves won't stop with so-called equal time rules. Al Franken, the liberal former Air America host who is now running for the Senate in Minnesota, is already slipping into the role of potential legislative censor of his old industry. "You shouldn't be able to lie on the air," he told Newsweek's Mr. Fineman earlier this year. "You can't utter obscenities in a broadcast, so why should you be able to lie? You should be fined for lying."

In fact, you can be "fined" for lying, if the person you lie about successfully sues for defamation. But the First Amendment makes it exceedingly difficult for defamation plaintiffs to prevail, especially if they are public figures--and for good reason. Under a more pro-plaintiff legal regime, "the pall of fear and timidity imposed upon those who would give voice to public criticism is an atmosphere in which the First Amendment freedoms cannot survive," Justice William Brennan wrote in New York Times v. Sullivan (1964).

Justice Brennan used to be a liberal hero. If he were alive today, he would surely be dismayed to learn that liberals seem to have concluded they have no use for the First Amendment.

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